Thursday, March 18, 2010

Taking On the Court

Jeffrey Rosen thinks that Obama should pick a fight with the Supreme Court over its Citizens United holding that certain restrictions on corporate-funded political speech in the run up to an election violate the First Amendment:

“Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight. Last week, the chief justice described the president’s State of the Union condemnation of the Citizens United decision as ‘very troubling’ and complained that the speech had ‘degenerated to a political pep rally.’ Roberts was making an argument about etiquette--dissent was fine, he said, but Obama had somehow transgressed the boundaries of civilized discourse by delivering his attack to a captive audience. But he was implicitly making a political argument as well. That is, Roberts seems to have joined the battle with Obama because he thinks the Court can win it.

"As a matter of history, this argument is wrong: In battles between a popular president and an anti-majoritarian Court, it’s almost always the president who prevails. Using the Court as a punching bag puts Obama in the company of his greatest predecessors, Jefferson, Lincoln, and both Roosevelts--all of whom bashed the Court for thwarting the will of the people. As long as he plays his cards carefully, Obama has much to gain from challenging John Roberts, and the Roberts Court has much to lose.”

Leave aside that it’s a stretch to say that the Chief Justice “welcomes the fight”; all he did was suggest, in response to a student’s question at a law school forum, that it might not be such a great idea for Supreme Court justices to attend the State of the Union Address. That doesn’t sound to me much like a declaration of war by the judiciary against the political branches on the order of the Supreme Court's Dred Scott decision or it’s invalidation of the central planks of the New Deal during FDR’s first term. It says something important about the present state of liberalism that a liberal as influential as Rosen lacks the ideological self-consciousness to tell the difference.

Dred Scott and Supreme Court jurisprudence during FDR’s first term were frontal assaults on democratic decision-making. In the first case, the Court nullified a series of democratic decisions that slavery would not be permitted in the free states. In the second series of cases, it decided that the political branches would not be permitted to undertake an economic recovery program for which they had a massive democratic mandate. In all these cases, the Court was invoking questionable legal grounds to tell a majority of voters that their heartfelt preferences about the state of the union didn’t count.

The “anti-majoritarian” parallels with Citizens United are trivial. Yes, the Court held that the preferences of the democratic majority that passed McCain-Feingold shouldn’t count in public decision-making. But it did that in the course of discharging its traditional function of interpreting the First Amendment with respect to core political speech. It was applying a constitutional provision designed by the framers to exclude citizen preference against free expression from public decision-making on the grounds that such exclusions ensure that a democratic majority’s substantive preferences are sufficiently informed, and therefore sufficiently accurate expressions of the preference-holders’ real interests and ideals, to be worth counting in the first place. You can argue (as I would) that the Court has embraced a mistaken interpretation of the First Amendment, but not that its efforts to interpret the First Amendment are anti-majoritarian in any important sense.

What’s more, the idea that it pays a modern liberal president to contest the legitimacy of the Supreme Court's resisting majoritarian pressures is otherworldly. Liberals are the ones who rely on courts to uphold their values respecting sexual morality, the criminal justice system and national security in the face of popular opposition. Can it really be good politics in anything but the shortest of short runs for Obama to pretend he's positioned to lead a democratic charge against the Supreme Court?